Mr. DOUGLAS (Weyburn):

I wonder if it would make any difference to the minister if the bill were introduced and permitted to stand. It could be dropped in the event of the government bringing down legislation.

Mr. DUNNING:

Yes.

Motion agreed to and bill read the first time.

Right Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, in answer to the question directed to me yesterday by the hon. member for Winnipeg North Centre (Mr. Woodsworth) I desire to make a statement.

Section 99 of the criminal code empowers the governor in council to prohibit drilling, military exercises and training without lawful authority, and makes it a criminal offence. Such a proclamation was issued on September 21, 1917, and has never been repealed. Section 99, therefore, is in force in all parts of Canada at the present time. By virtue of the proclamation of 1917, issued under the authority of the then section 98 of the criminal code, the present section 99, it is a criminal offence for any persons to carry out such military exercises, movements or evolutions without lawful authority, and if an offence is being committed it is of course the responsibility of the provincial authorities to prosecute, because the administration generally of the provisions of the criminal law rests with the provinces.

In the circumstances, however, the question of unlawful drilling and military training and exercises by political groups is one which may involve the dominion as a whole and, therefore, the dominion government will, in addition to any steps which may be taken by any provincial authority, cause an investigation to be made. If as a result of such investigation it is considered that an offence against the criminal law, as above referred to, is being committed by fascists, communists or otherwise, the government will cause the necessary proceedings to be initiated by way of having such information and complaint laid as the facts disclosed by the investigation may justify, and otherwise the government will furnish such reasonable assistance to the provincial authorities as they may require in connection with the prosecution.

Right Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, my purpose

in rising to take part in this debate is merely to discuss briefly two or three matters which have been referred to in the speeches of my right hon. friend the leader of the opposition (Mr. Bennett) and other hon. members, especially those who sit in the far corner.

The first matter I should like to refer to is the reference to the Supreme Court of Canada of three bills which had been reserved by the lieutenant governor of Alberta. There was also the matter of the disallowance of three statutes which had been passed by the province of Alberta a few months before the reference was made. Apparently my right hon. friend is not very fond of references to the Supreme Court of Canada, although he indulged in that practice when he was the head of the government.

Mr. BENNETT:

Very seldom.

Mr. LAPOINTE (Quebec East):

On a few occasions. My right hon. friend said that the referring of these matters to the Supreme Court of Canada would prove dangerous to the preservation of the powers of the central government. As his authority he quoted from a letter which Sir John A. Macdonald had written in 1889 to the then Minister of Justice, Sir John Thompson. It is true that at that time the Su-

The Address-Mr. Lapointe (Quebec East)

prcme Court Act had been passed, but it did not contain section 55 which empowers the governor general to make these references.

At the interprovincial conference of 1888 Mr. Mercier succeeded in having a resolution adopted, section 2 of which read as follows:

That it is important to the just operation of our federal system, as well that the federal parliament should not assume to exercise powers belonging exclusively to the provincial legislatures, as that a provincial legislature should not assume to exercise powers belonging exclusively to the federal parliament; that to prevent any such assumption, there should be equal facilities to the federal and provincial governments for promptly obtaining a judicial determination respecting the validity of statutes of both the federal parliament and provincial legislatures; that constitutional provision should be made for obtaining such determination before, as well as after a statute has been acted upon; and that any decision should be subject to appeal as in other cases, in order that the adjudication may be final.

The question under consideration was the settlement of the Jesuits' estates, a very important matter which had entered the political field. Sir John A. Macdonald did not view with favour the request which had been made, as was indicated in his letter to Sir John Thompson. In 1890, subsequent to the date of the letter of Sir John A. Macdonald quoted by my right hon. friend, the Hon. Edward Blake moved an amendment to the motion to go into supply, which read as follows:

To leave out all the words after "That"- and insert the following:-"it is expedient to provide means -whereby, on solemn occasions touching the exercise of the power of disallowance, or of the appellate power as to educational legislation, important questions of law or fact may be referred by the executive to a high judicial tribunal for hearing and consideration. in such mode that the authorities and parties interested may be represented and that a reasoned opinion may be obtained for the information of the executive."

Mr. CAHAN:

What was the date of that?

Mr. LAPOINTE (Quebec East):

April 29, 1890. Mr. Blake made a very learned speech in support of his amendment, from which I should like to quote a few words. I read from Hansard of 1890, page 4088, as follows:

Now, sir, in the exercise of this power of disallowance by the government, political questions will, or at any rate may, probably, always arise. Questions of policy may present themselves, that is questions of expediency, of convenience, of the public interest, of the spirit of the constitution or of the form of legislation. All these are clearly, exclusively for the executive and legislative, that is for the political departments of the government. But it is equally clear, that when in order to determine your course you must find whether a particular act is ultra or intra vires, you are discharging a legal and a judicial function. What do you do? You proceed to interpret the Constitutional Act, and to declare its meaning; you proceed to interpret the provincial act under consideration and to declare its meaning; you proceed to compare the two statutes so interpreted and declared; and you proceed, finally, to conclude whether or not the law conflicts with, or transcends the powers which are conferred upon the legislature which passed it. Nothing that can be conceived partakes more exclusively of the character of a legal and judicial operation than what I have just now described.

And then on page 4089:

My own opinion is, that whenever, in opposition to the continued view of a provincial executive and legislature it is contemplated by the dominion executive to disallow a provincial act because it is ultra vires, there ought to be a reference; and also that there ought to be a reference in certain cases where the condition of public opinion renders expedient a solution of legal problems, dissociated from those elements of passion and expediency which are, rightly or wrongly, too often attributed to the action of political bodies. And again, I for my part would recommend such a reference in all cases of educational appeal-cases which necessarily evoke the feelings to which I have alluded, and to one of which, I am frank to say, my present motion is mainly due.

He said, again:

But my proposal is by no means radical or revolutionary, compulsory or general. It is but an enabling proposition; it but empowers the executive to obtain-by a procedure replete with the essential requisites for the production of a sound opinion-the views on legal questions of legal authorities, leaving to the executive, so aided, the responsibility of final action. I have an absolute confidence that, if my proposal should be declined, the first persons to regret that decision will be hon. gentlemen opposite. My opinion is, that this is a proposal eminently helpful to the executive of the country at this time; but it is eminently helpful to them because it is eminently helpful to the good government of this country; and it is in this spirit that I move the amendment which I now submit to the judgment of the house.

Sir John A. Macdonald, then prime minister, replied, and his remarks will be found at pages 4093 and 4094. He started by saying that at first the resolution did not appeal to him, but after careful consideration and study this was the conclusion he had come to:

Whenever the question of disallowance is raised on important matters and the reasons alleged for disallowance are that the act itself was ultra vires, that is, that it was beyond the competence of the legislature which passed it, I coincide with my hon. friend in believing that the crown should have the power of submitting such a question to the courts, and give the opportunity to the authority-be it legislative or executive, which has passed the statute, to appear before such tribunals, and that all parties interested, or that the court should think were interested, should have tiie opportunity of being heard. Of course my hon. friend

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(Mr. Blake), in his resolution, has guarded against the supposition that such a decision is binding on the executive. It is expressly stated-and that is one of the instances which shows that this resolution has been most carefully prepared-that such a decision is only for the information of the government. The executive is not relieved from any responsibility because of any answer being given by the tribunal. If the executive were to be relieved of any such responsibility, I should consider that a fatal blot in the proposition of my hon. friend. I believe in responsible government. I believe in the responsibility of the executive. But the answer of the tribunal will be simply for the information of the government. The government may dissent from that decision, and it may be their duty to do so if they differ from the conclusion to which the court has come.

There is another point in regard to which the court must be guarded in the measure which will be introduced-not this session but I hope next session-based on this resolution, and that is that the answer, whatever it may be, should be considered in the nature of a judgment so far as to allow of an appeal to the judicial committee of the privy council. AVith these remarks, I will only say further, that I thank the hon. gentleman for having brought this resolution before the house, as I concur with it generally, though holding the right with a free hand to frame the measure which will have to be brought down to parliament in accordance with it.

In the following year, 1891, as a result of that resolution which had been unanimously adopted by parliament, the "Act respecting the Supreme and Exchequer Courts," by section 4 of chapter 25 of the statutes of 1891 was amended by the substitution of a new section for section 37. This new section was the prototype of section 55 of the present Supreme Court Act. So, Mr. Speaker, this power of referring legal questions to the Supreme Court of Canada was placed in the act after parliament, on the resolution of Edward Blake, supported by Sir John A. Macdonald, had thought that this would be the best way to deal with such questions as the disallowance or otherwise of provincial statutes which might be considered ultra vires or to trespass on the powers of parliament. My right hon. friend (Mr. Bennett) says: Yes, but this was not a statute that you referred; it was merely a useless piece of paper, an incomplete document.